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Electronically FILED by Superior Court of California, County of Los Angeles on 06/17/2021 08:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Perez,Deputy Clerk
1 Robert M. Moss, Esq. (SBN 051198)
LAW OFFICES OF ROBERT M. MOSS, INC.
2 2425 Olympic Blvd., 4000 W
Santa Monica, CA 90404
3 Tel: 310-260-7650
Fax: 310-260-7654
4 E-Mail: rmmosslaw@hotmail.com
5 Attorneys for Plaintiff,
FRANK ACOSTA
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF LOS ANGELES
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10 FRANK ACOSTA, Case No. 20STCV11706
11 Plaintiff, Action Filed: 3/24/2020
CMC: 5/7/2021
12 vs.
MEMORANDUM OF POINTS AND
13 KEVIN ROBINSON; and DOES 1 through 50, AUTHORITIES IN SUPPORT OF EX
inclusive, PARTE TO CONTINUE ACTION BY
14 PERSONAL REPRESENTATIVE OF
Defendants. PLAINTIFF’S ESTATE (C.C.P. § 377.31)
15
[Filed concurrently with Ex Parte Application to
16 Continue Action by Personal Representative of
Plaintiff’s Estate; Declaration of Michele
17 Marquez; and Proposed Order]
18 Date: June 21, 2021
Time: 8:30 am
19 Dept.: 36
Judge: Gregory W. Alarcon
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE
ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31)
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION AND STATEMENT OF FACTS
3 This is an action for Breach of Contract and Fraud, with exemplary damages. The action arises out
4 of a loan agreement entered into between Plaintiff Frank L. Acosta, Jr. (hereinafter “Plaintiff” or “Plaintiff
5 Frank Acosta”) and Defendant Kevin Robinson on or about July 1, 2018. Plaintiff lent Defendant $65,000
6 pursuant to a Promissory Note Agreement (the “Agreement”) entered into on July 1, 2018. Defendant
7 promised to repay to Plaintiff the $65,000 lent and the $13,000 share of profits promised to Plaintiff under
8 the Agreement on or before November 1, 2018. However, Defendant had no intention of repaying Plaintiff
9 the $65,000 lent, or to pay Plaintiff the sum of $13,000 as his share of the venture, not did Defendant
10 intent to pay Plaintiff the requisite increased profits of $500 per month commencing 60 days after the
11 notice of default was served.
12 Thus, Plaintiff Frank Acosta filed and served the herein action on or about March 24, 2020.
13 Defendant Kevin Robinson failed to respond to the Complaint. Thereafter, Plaintiff Frank Acosta filed a
14 Request for Entry of Default Judgment against Defendant Kevin Robinson on or about March 19, 2021.
15 Since Defendant has previously been served and a request for default has already been filed, there is no
16 reason or requirement to serve Defendant again.
17 Subsequently, on November 21, 2020, Plaintiff Frank Acosta died. Plaintiff’s Aunt, Michele
18 Marquez, is the executor of Plaintiff’s estate and the Trustee to “the Frank L. Acosta, Jr. Revocable Trust
19 – 2014.” Accordingly, Plaintiff is applying, pursuant to California Code of Procedure § 377.31 to continue
20 the pending action through Michele Marquez as the personal representative of decedent Frank Acosta.
21 II. LEGAL AUTHORITY
22 Pursuant to Cal. Code Civ. Proc. § 377.31, if a plaintiff dies after he or she has commenced an
23 action or proceeding, the court, on motion, must allow the pending action or proceeding to be continued
24 by the decedent’s personal representative or successor in interest. For the purposes of § 377.31, the
25 decedent’s personal representative means the executor or administrator of the decedent’s estate. Cal. Prob.
26 Code § 58. The decedent’s personal representative ’s right “to be substituted for a deceased party is
27 absolute if the cause of action survives death.” Pepper v. Superior Court, 76 Cal. App. 3d 252, 206-61
28 (1977).
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE
ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31)
1 III. THIS ACTION MAY BE CONTINUED BY MICHELE MARQUEZ AS DECEDENT
2 FRANK ACOSTA’S PERSONAL REPRESENTATIVE
3 Frank Acosta, the plaintiff in this action, passed away on November 21, 2020 in Two Harbors,
4 California. (See Declaration of Michele Marquez, ¶ 2). His action against Defendants survives his death
5 because the action was filed within the applicable statute of limitations period and the causes of action
6 within are not prohibited by statute to continue upon his death. See Cal. Code Civ. Proc. §§ 377.20, 377.21.
7 Michele Marquez is Plaintiff’s personal representative as defined by Cal. Code Civ. Proc. § 377.11
8 and Cal. Prob. Code § 58. She is the executor of Plaintiff’s estate and trustee to the Frank L. Acosta, Jr.
9 Trust – 2014. (See Declaration of Michele Marquez, ¶ 3-4).
10 Ms. Marquez’s declaration, filed concurrently herewith, sets forth all matters required under Code
11 Civ. Proc. § 377.32. (See Declaration of Michele Marquez In Support of Motion to Continue Action).
12 Since Defendant has previously been served and a request for default has already been filed, there is no
13 reason or requirement to serve Defendant again. Pursuant to the above authority, Ms. Marquez is entitled
14 to continue the above action on Plaintiff’s behalf as his personal representative.
15 IV. CONCLUSION
16 For the foregoing reasons, Plaintiff, by and through his successor, Michele Marquez, respectfully
17 requests that the Court grant MICHELE MARQUEZ’s application to continue this action on behalf of
18 decedent Plaintiff FRANK ACOSTA as the personal representative of his estate.
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20 Dated: June 16, 2021 LAW OFFICE OF ROBERT M. MOSS
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22 By ______
ROBERT M. MOSS,
23 Attorneys for Plaintiff,
FRANK ACOSTA
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE
ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31)
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Electronically FILED by Superior Court of California, County of Los Angeles on 06/17/2021 08:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Perez,Deputy Clerk 1 Robert M. Moss, Esq. (SBN 051198) LAW OFFICES OF ROBERT M. MOSS, INC. 2 2425 Olympic Blvd., 4000 W Santa Monica, CA 90404 3 Tel: 310-260-7650 Fax: 310-260-7654 4 E-Mail: rmmosslaw@hotmail.com 5 Attorneys for Plaintiff, FRANK ACOSTA 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF LOS ANGELES 9 10 FRANK ACOSTA, Case No. 20STCV11706 11 Plaintiff, Action Filed: 3/24/2020 CMC: 5/7/2021 12 vs. MEMORANDUM OF POINTS AND 13 KEVIN ROBINSON; and DOES 1 through 50, AUTHORITIES IN SUPPORT OF EX inclusive, PARTE TO CONTINUE ACTION BY 14 PERSONAL REPRESENTATIVE OF Defendants. PLAINTIFF’S ESTATE (C.C.P. § 377.31) 15 [Filed concurrently with Ex Parte Application to 16 Continue Action by Personal Representative of Plaintiff’s Estate; Declaration of Michele 17 Marquez; and Proposed Order] 18 Date: June 21, 2021 Time: 8:30 am 19 Dept.: 36 Judge: Gregory W. Alarcon 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31) 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION AND STATEMENT OF FACTS 3 This is an action for Breach of Contract and Fraud, with exemplary damages. The action arises out 4 of a loan agreement entered into between Plaintiff Frank L. Acosta, Jr. (hereinafter “Plaintiff” or “Plaintiff 5 Frank Acosta”) and Defendant Kevin Robinson on or about July 1, 2018. Plaintiff lent Defendant $65,000 6 pursuant to a Promissory Note Agreement (the “Agreement”) entered into on July 1, 2018. Defendant 7 promised to repay to Plaintiff the $65,000 lent and the $13,000 share of profits promised to Plaintiff under 8 the Agreement on or before November 1, 2018. However, Defendant had no intention of repaying Plaintiff 9 the $65,000 lent, or to pay Plaintiff the sum of $13,000 as his share of the venture, not did Defendant 10 intent to pay Plaintiff the requisite increased profits of $500 per month commencing 60 days after the 11 notice of default was served. 12 Thus, Plaintiff Frank Acosta filed and served the herein action on or about March 24, 2020. 13 Defendant Kevin Robinson failed to respond to the Complaint. Thereafter, Plaintiff Frank Acosta filed a 14 Request for Entry of Default Judgment against Defendant Kevin Robinson on or about March 19, 2021. 15 Since Defendant has previously been served and a request for default has already been filed, there is no 16 reason or requirement to serve Defendant again. 17 Subsequently, on November 21, 2020, Plaintiff Frank Acosta died. Plaintiff’s Aunt, Michele 18 Marquez, is the executor of Plaintiff’s estate and the Trustee to “the Frank L. Acosta, Jr. Revocable Trust 19 – 2014.” Accordingly, Plaintiff is applying, pursuant to California Code of Procedure § 377.31 to continue 20 the pending action through Michele Marquez as the personal representative of decedent Frank Acosta. 21 II. LEGAL AUTHORITY 22 Pursuant to Cal. Code Civ. Proc. § 377.31, if a plaintiff dies after he or she has commenced an 23 action or proceeding, the court, on motion, must allow the pending action or proceeding to be continued 24 by the decedent’s personal representative or successor in interest. For the purposes of § 377.31, the 25 decedent’s personal representative means the executor or administrator of the decedent’s estate. Cal. Prob. 26 Code § 58. The decedent’s personal representative ’s right “to be substituted for a deceased party is 27 absolute if the cause of action survives death.” Pepper v. Superior Court, 76 Cal. App. 3d 252, 206-61 28 (1977). 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31) 1 III. THIS ACTION MAY BE CONTINUED BY MICHELE MARQUEZ AS DECEDENT 2 FRANK ACOSTA’S PERSONAL REPRESENTATIVE 3 Frank Acosta, the plaintiff in this action, passed away on November 21, 2020 in Two Harbors, 4 California. (See Declaration of Michele Marquez, ¶ 2). His action against Defendants survives his death 5 because the action was filed within the applicable statute of limitations period and the causes of action 6 within are not prohibited by statute to continue upon his death. See Cal. Code Civ. Proc. §§ 377.20, 377.21. 7 Michele Marquez is Plaintiff’s personal representative as defined by Cal. Code Civ. Proc. § 377.11 8 and Cal. Prob. Code § 58. She is the executor of Plaintiff’s estate and trustee to the Frank L. Acosta, Jr. 9 Trust – 2014. (See Declaration of Michele Marquez, ¶ 3-4). 10 Ms. Marquez’s declaration, filed concurrently herewith, sets forth all matters required under Code 11 Civ. Proc. § 377.32. (See Declaration of Michele Marquez In Support of Motion to Continue Action). 12 Since Defendant has previously been served and a request for default has already been filed, there is no 13 reason or requirement to serve Defendant again. Pursuant to the above authority, Ms. Marquez is entitled 14 to continue the above action on Plaintiff’s behalf as his personal representative. 15 IV. CONCLUSION 16 For the foregoing reasons, Plaintiff, by and through his successor, Michele Marquez, respectfully 17 requests that the Court grant MICHELE MARQUEZ’s application to continue this action on behalf of 18 decedent Plaintiff FRANK ACOSTA as the personal representative of his estate. 19 20 Dated: June 16, 2021 LAW OFFICE OF ROBERT M. MOSS 21 22 By ______ ROBERT M. MOSS, 23 Attorneys for Plaintiff, FRANK ACOSTA 24 25 26 27 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE ACTION BY PERSONAL REPRESENTATIVE OF PLAINTIFF’S ESTATE (C.C.P. § 377.31)